# The State of Punjab & Ors v. Davinder Singh & Ors

- **Citation:** 2024 INSC 562
- **Court:** Supreme Court of India
- **Decided:** 2024-08-01
- **Case number:** Civil Appeal No. 2317 of 2011
- **Bench:** Dr Dhananjaya Y Chandrachud, B.R. Gavai, Vikram Nath, Bela M. Trivedi, Pankaj Mithal, Manoj Misra, Satish Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-punjab-ors-v-davinder-singh-ors-38040
- **Pages:** 352

## Headnote

The Supreme Court was required to adjudicate upon whether the
sub-classification of Scheduled Castes for the purpose of providing
affirmative action, including reservation is valid. In this context, the
following issues arose for consideration: Whether sub-classification
of a reserved class is permissible under Articles 14, 15 and 16
of the Constitution; Whether the Scheduled Castes constitute a
homogenous or a heterogenous grouping; Whether Article 341 of
the Constitution creates a homogenous class through the operation
of the deeming fiction; and Whether there any limits on the scope
of sub-classification.
Headnotes†
Reservation - Whether sub-classification of Scheduled Castes
for purposes of reservation is constitutionally permissible -
Held (per majority), Yes.
Held (per Dr D Y Chandrachud, CJI) (for himself and
Manoj Misra, J.): 1. Article 14 of the Constitution permits
sub-classification of a class which is not similarly situated for the
purpose of the law - The Court while testing the validity of subclassification must determine if the class is a homogenous integrated
class for fulfilling the objective of the sub-classification - If the class
is not integrated for the purpose, the class can be further classified
upon the fulfillment of the two-prong intelligible differentia standard.
[Para 205(a)]
2. The holding in Chinnaiah that sub-classification of the Scheduled
Castes is impermissible is overruled. [Para 205(f)]
Held (per B.R. Gavai, J.) (Concurring): 1. E.V. Chinnaiah, which
held that sub-classification amongst the Scheduled Castes for the
* Author
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purpose of giving more beneficial treatment to a group in the larger
group of the Scheduled Castes is not permissible, does not lay
down a good law. [Para 296 (i)]
2. Sub-classification amongst the Scheduled Castes for giving more
beneficial treatment is permissible in law. [Para 296 (ii)]
Held (per Vikram Nath, J.) (Concurring): I am generally in
agreement with the reasons and conclusions arrived at in the
opinions of Hon'ble the Chief Justice and Brother Justice Gavai in
particular that the holding in E.V. Chinnaiah, that sub-classification
within Scheduled Castes was impermissible, does not lay down
good law and stands over-ruled. [Para 1]
Held (per Pankaj Mithal, J.) (Concurring): 1. The issue of subclassification of scheduled castes has been appropriately answered
by the Chief Justice and my esteemed brother Justice Gavai by
their separate opinions with which I respectfully agree. [Para 9]
2. The policy of reservation as enshrined under the Constitution
and by its various amendments requires a fresh re-look and
evolvement of other methods for helping and uplifting the depressed
class or the downtrodden or the persons belonging to SC/ST/OBC
communities - So long no new method is evolved or adopted, the
system of reservation as prevailing may continue to occupy the
field with power to permit sub-classification of a class particularly
scheduled caste as I would not be suggesting dismantling of an
existing building without erecting a new one in its place which may
prove to be more useful. [Para 84(i)]
3. Sub-classification of Scheduled Castes is permissible in law for
the purposes of reservation. [Para 85]
Held (per Satish Chandra Sharma, J.) (Concurring): I have had
the privilege of reading the lucid and detailed opinion(s) authored
by Hon'ble Dr. Justice D.Y.Chandrachud, Chief Justice of India
and Hon'ble Mr. Justice B.R. Gavai, respectively - I am fully in
agreement with both opinions to the extent that the validity of
sub-classification within Scheduled Castes has been held to be
constitutionally permissible. [Para 1]
Held (per Bela M. Trivedi, J.) (Dissenting): 1. When the law
was settled by the Constitution Bench in E.V. Chinnaiah after
considering all the previous judgments including Indra Sawhney
and after investing substantial judicial time and resources, the
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The State of Punjab & Ors. v.

## Text

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[2024] 8 S.C.R. 1321 : 2024 INSC 562
The State of Punjab & Ors.
v.
Davinder Singh & Ors.
Civil Appeal No. 2317 of 2011
01 August 2024
[Dr Dhananjaya Y Chandrachud,* CJI, B.R. Gavai,*
Vikram Nath,* Bela M. Trivedi,* Pankaj Mithal,*
Manoj Misra and Satish Chandra Sharma,* JJ.]
Issue for Consideration
The Supreme Court was required to adjudicate upon whether the
sub-classification of Scheduled Castes for the purpose of providing
affirmative action, including reservation is valid. In this context, the
following issues arose for consideration: Whether sub-classification
of a reserved class is permissible under Articles 14, 15 and 16
of the Constitution; Whether the Scheduled Castes constitute a
homogenous or a heterogenous grouping; Whether Article 341 of
the Constitution creates a homogenous class through the operation
of the deeming fiction; and Whether there any limits on the scope
of sub-classification.
Headnotes†
Reservation - Whether sub-classification of Scheduled Castes
for purposes of reservation is constitutionally permissible -
Held (per majority), Yes.
Held (per Dr D Y Chandrachud, CJI) (for himself and
Manoj Misra, J.): 1. Article 14 of the Constitution permits
sub-classification of a class which is not similarly situated for the
purpose of the law - The Court while testing the validity of subclassification must determine if the class is a homogenous integrated
class for fulfilling the objective of the sub-classification - If the class
is not integrated for the purpose, the class can be further classified
upon the fulfillment of the two-prong intelligible differentia standard.
[Para 205(a)]
2. The holding in Chinnaiah that sub-classification of the Scheduled
Castes is impermissible is overruled. [Para 205(f)]
Held (per B.R. Gavai, J.) (Concurring): 1. E.V. Chinnaiah, which
held that sub-classification amongst the Scheduled Castes for the
* Author
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purpose of giving more beneficial treatment to a group in the larger
group of the Scheduled Castes is not permissible, does not lay
down a good law. [Para 296 (i)]
2. Sub-classification amongst the Scheduled Castes for giving more
beneficial treatment is permissible in law. [Para 296 (ii)]
Held (per Vikram Nath, J.) (Concurring): I am generally in
agreement with the reasons and conclusions arrived at in the
opinions of Hon'ble the Chief Justice and Brother Justice Gavai in
particular that the holding in E.V. Chinnaiah, that sub-classification
within Scheduled Castes was impermissible, does not lay down
good law and stands over-ruled. [Para 1]
Held (per Pankaj Mithal, J.) (Concurring): 1. The issue of subclassification of scheduled castes has been appropriately answered
by the Chief Justice and my esteemed brother Justice Gavai by
their separate opinions with which I respectfully agree. [Para 9]
2. The policy of reservation as enshrined under the Constitution
and by its various amendments requires a fresh re-look and
evolvement of other methods for helping and uplifting the depressed
class or the downtrodden or the persons belonging to SC/ST/OBC
communities - So long no new method is evolved or adopted, the
system of reservation as prevailing may continue to occupy the
field with power to permit sub-classification of a class particularly
scheduled caste as I would not be suggesting dismantling of an
existing building without erecting a new one in its place which may
prove to be more useful. [Para 84(i)]
3. Sub-classification of Scheduled Castes is permissible in law for
the purposes of reservation. [Para 85]
Held (per Satish Chandra Sharma, J.) (Concurring): I have had
the privilege of reading the lucid and detailed opinion(s) authored
by Hon'ble Dr. Justice D.Y.Chandrachud, Chief Justice of India
and Hon'ble Mr. Justice B.R. Gavai, respectively - I am fully in
agreement with both opinions to the extent that the validity of
sub-classification within Scheduled Castes has been held to be
constitutionally permissible. [Para 1]
Held (per Bela M. Trivedi, J.) (Dissenting): 1. When the law
was settled by the Constitution Bench in E.V. Chinnaiah after
considering all the previous judgments including Indra Sawhney
and after investing substantial judicial time and resources, the
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The State of Punjab & Ors. v. Davinder Singh & Ors.
same should not have been doubted and referred to the larger
bench by the Three-Judge Bench in Davinder Singh, and that too
without assigning any reason much less cogent reason for their
disagreement disregarding the well settled doctrines of Precedents
and Stare decisis. [Para 79(i)]
2. The Nine-Judge Bench in Indra Sawhney and the Five-Judge
Bench in Jarnail Singh had not dealt with the issue of subclassification of the "Scheduled Castes" in the context of Article
341, much less had dealt with the State's powers to sub-classify or
sub-divide or regroup the castes specified as "Scheduled Castes"
under Article 341 of the Constitution, and therefore, it could not be
held that the law laid down in E.V. Chinnaiah was not in consonance
with Indra Sawhney or Jarnail Singh. [Para 79(viii)]
3. The power conferred upon the Supreme Court under Article 142
cannot be used to supplant the substantive law applicable to the
case under consideration - Even with the width of its amplitude,
Article 142 cannot be used to build a new edifice where none
existed earlier, by ignoring express statutory provisions dealing
with the subject, and thereby to achieve something indirectly which
cannot be achieved directly - The action of the State, though
well intentioned and affirmative in nature, if violates the specific
provision of the Constitution, cannot be validated by the Supreme
Court in exercise of its jurisdiction under Article 142. [Para 79(ix)]
4. The affirmative action and legal frameworks, though both do
aim at more equitable society, they must navigate complex legal
principles to ensure fairness and constitutionality. [Para 79(x)]
5. The law laid down by the Five-Judge Bench in E.V. Chinnaiah
is the correct law and deserves to be confirmed. [Para 80]
Reservation - Whether sub-classification of Scheduled Castes
for reservation was excluded or barred by the Nine Judge
Bench decision in Indra Sawhney case - Held, No.
Held (per Dr D Y Chandrachud, CJI) (for himself and
Manoj Misra, J.): In Indra Sawhney, this Court did not limit the
application of sub-classification only to the Other Backward Class -
This Court upheld the application of the principle to beneficiary
classes under Articles 15(4) and 16(4). [Para 205(b)]
Held (per B.R. Gavai, J.) (Concurring): In Indra Sawhney,
7 Learned Judges affirmed the position as laid down in N.M. Thomas
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that clause (4) of Article 16 is not by way of an exception to
clause (1) of Article 16, but it is an emphatic way of stating a principle
implicit in Article 16(1) - It has been held that further classification
of backward classes into backward and more backward classes
is permissible under the Constitution - It has been held in Indra
Sawhney that under Article 16(4) the Scheduled Castes are also
included in the term 'backward class of citizens'. [Paras 247, 248]
Held (per Pankaj Mithal, J.) (Concurring): The Chief Justice in
his opinion has clearly opined that this Court in Indra Sawhney
never intended to limit the application of sub-classification to the
other backward classes only - If any class is not integrated it can
be further classified and such sub-classification of a class would
not be violative of Article 14 of the Constitution, so long persons
in a class are not similarly situated. [Para 79]
Held (per Bela M. Trivedi, J.): Though Indra Sawhney had sought
to define "backward class" in terms of social backwardness,
while considering the ambit of "backward class" for the purpose
of Article 16(4), it did not deal with the issue qua the Scheduled
Castes/ Scheduled Tribes particularly in the light of Article 341/342,
rather it categorically kept the Scheduled Castes/ Scheduled Tribes
outside the purview of consideration - The Scheduled Castes
being the most backward class amongst the backward classes,
and having acquired a special status by virtue of Article 341, the
question of defining "backward class" qua the "Scheduled Castes"
did not arise, and rightly not dealt with in Indra Sawhney for the
purposes of Article 16(4) of the Constitution. [Para 70]
Reservation - Whether Scheduled Castes under Article 341,
constitute a homogeneous class - Held (per majority), No -
Constitution of India - Art. 341.
Held (per Dr D Y Chandrachud, CJI) (for himself and
Manoj Misra, J.): 1. In Chinnaiah, Justice Santosh Hegde observed
that the Castes notified by the President in the exercise of power
under Article 341 form a class in themselves - For this purpose,
the learned Judge relied on certain observations of the Constitution
Bench in NM Thomas case - In NM Thomas however, rules
providing concessions to the members of the Scheduled Castes
for qualifying at the entrance examination were challenged - One
of the issues before the Court was whether the concession to the
members of the Scheduled Castes violated Article 16(2) since it
discriminates solely on the ground of "caste" - To overcome the
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The State of Punjab & Ors. v. Davinder Singh & Ors.
embargo placed by Article 16(2), the learned Judges observed that
provision for affirmative action is made in favour of the Scheduled
Castes, which once notified by the President in exercise of the
power under Article 341 are not a "caste" but a class - The
class that is constituted by the Presidential notification as the
Scheduled Castes consists of numerous castes, thereby forming
a class - The observations in NM Thomas do not go further to
state that it is a homogenous class that cannot be classified
further - Additionally, the approach adopted in NM Thomas by
this Court that the Scheduled Castes are a class because they
comprise of a collection of castes must be read in the context
of the nine-Judge Bench decision in Indra Sawhney, where this
Court held that caste is itself a class - Therefore, the inference
drawn by Justice Hegde in Chinnaiah that the Scheduled Castes
are a homogenous class based on the above observations in
NM Thomas is erroneous. [Paras 113, 114]
2. Article 341(1) does not create a deeming fiction - The phrase
"deemed" is used in the provision to mean that the castes or groups
notified by the President shall be "regarded as" the Scheduled
Castes - Even if it is accepted that the deeming fiction is used for
the creation of a constitutional identity, the only logical consequence
that flows from it is that castes included in the list will receive the
benefits that the Constitution provides to the Scheduled Castes -
The operation of the provision does not create an integrated
homogenous class. [Para 205(c)]
3. Sub-classification within the Scheduled Castes does not
violate Article 341(2) because the castes are not per se included
in or excluded from the List - Sub-classification would violate
the provision only when either preference or exclusive benefit is
provided to certain castes or groups of the Scheduled Castes over
all the seats reserved for the class. [Para 205(d)]
Held (per B.R. Gavai, J.) (Concurring): The ground realities
cannot be denied - Even among the Scheduled Castes,
there are some categories who have received more inhuman
treatment for centuries and generations as compared to the other
categories - The hardships and the backwardness which these
categories have suffered historically would differ from category to
category - Therefore, merely because they are part of a single or
a combined Presidential List, it cannot be said that they form part
of a homogeneous group. [Para 261]
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Held (per Bela M. Trivedi, J.) (Dissenting): 1. While giving a
broad and generous construction to the Constitutional provisions,
the rule of "plain meaning", or "literal" interpretation, which is the
"primary rule" has to be kept in mind. [Para 79(ii)]
2. The Presidential List specifying "Scheduled Castes" under
Article 341 assumes finality on the publication of the notification,
and the castes, races or tribes, or groups within castes, races or
tribes specified in the notification are deemed to be the "Scheduled
Castes" in relation to that State or Union Territory as the case
may be, for the purposes of the Constitution and as such assume
special status of "Scheduled Castes". [Para 79(iii)]
3. It is only the Parliament by law which can include in or exclude
from the list of the "Scheduled Castes" specified in the notification
notified under Clause (1), any caste, race or tribe or part of or group
within any caste, race or tribe - Such notification notified under
Clause (1) cannot be varied even by the President by issuing any
subsequent notification. [Para 79(iv)]
4. It is by virtue of the notification of the President under Article 341
that the "Scheduled Castes" come into being - Though the members
of Scheduled Castes are drawn from different castes, races or
tribes, they attain special status of "Scheduled Castes" by virtue of
Presidential Notification - The etymological and evolutionary history
and the background of the nomenclature "Scheduled Castes",
coupled with the Presidential orders published under Article 341
of the Constitution, make the "Scheduled Castes", a homogenous
class, which cannot be tinkered with by the States. [Para 79(v)]
Reservation - Whether State legislature has the power of subclassification of Scheduled Castes under Arts. 15 and 16 - Held
(per majority), Yes - Constitution of India - Arts. 15 and 16.
Held (per Dr D Y Chandrachud, CJI) (for himself and
Manoj Misra, J.): Historical and empirical evidence demonstrates
that the Scheduled Castes are a socially heterogenous class -
Thus, the State in exercise of the power under Articles 15(4) and
16(4) can further classify the Scheduled Castes if (a) there is a
rational principle for differentiation; and (b) the rational principle
has a nexus with the purpose of sub-classification. [Para 205(e)]
Held (per B.R. Gavai, J.) (Concurring):
1. It is the duty of the State to give preferential treatment to the
backward class of citizens who are not adequately represented - If
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The State of Punjab & Ors. v. Davinder Singh & Ors.
the State while discharging that duty finds that certain categories
within the Scheduled Castes and Scheduled Tribes are not
adequately represented and only the people belonging to few of the
categories are enjoying the entire benefit reserved for Scheduled
Castes and Scheduled Tribes, can the State be denied its right to
give more preferential treatment for such categories? The answer
would be in the negative, since the same would not amount to
tinkering with the Presidential List. [Para 258]
2. No doubt that if the State decides to provide 100% of the
reservation for Scheduled Castes to one or more categories
enlisted in the Presidential List in that State to the exclusion of
some categories, it may amount to tinkering with that list because,
in effect, it would amount to denial of benefit of reservation to those
Scheduled Caste categories which have been excluded - That
would, in effect, amount to deletion of the said categories from
the Presidential List notified under Article 341 of the Constitution,
which power is exclusively reserved with Parliament; such an
exercise would not be permissible. [Para 259]
3. However, merely because more preferential treatment is provided
to the more backward or more inadequately represented among
the Scheduled Castes, it would not amount to tinkering with the
Presidential List - The same would be permissible in view of the
law laid down by the 9-Judge Bench in the case of Indra Sawhney.
[Para 260]
Held (per Bela M. Trivedi, J.) (Dissenting): 1. The States have
no legislative competence to enact the law for providing reservation
or giving preferential treatment to a particular caste/castes by
dividing/sub-dividing/sub-classifying or regrouping the castes, races
or tribes enumerated as the "Scheduled Castes" in the notification
under Article 341. [Para 79(vi)]
2. Under the guise of providing reservation or under the pretext
of taking affirmative action for the weaker of the weakest sections
of the society, the State cannot vary the Presidential List, nor can
tinker with Article 341 of the Constitution. [Para 79(vii)]
Reservation - Criteria and scope for sub-classification of
Scheduled Castes - Discussed.
Held (per Dr D Y Chandrachud, CJI) (for himself and
Manoj Misra, J.): 1. The purpose of the reservation clause is
to remedy the inadequate representation in public services of
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certain "classes" - The intent of Article 16(4) is to cover those
classes which have been inadequately represented because of
their backwardness. [Paras 165, 166]
2. However, adequacy of representation when determined purely
from a numerical perspective without accounting for factors such
as representation vis-à-vis posts would dilute the purpose of the
provision - The objective of Article 16(4) is to ensure effective
representation of the class in the services of the State across posts
and grades - The objective of the provision is not to emulate the
existing social hierarchy where the low-grade posts are occupied
by the socially backward while supervisory and managerial posts
continue to be occupied by the advanced classes - If the objective
of Article 16(4) is to be achieved in the truest sense, the inadequacy
of representation must not be determined only on the basis of the
total number of members of the backward class in the services of
the State but by assessing the representation of the class across
various posts. [Paras 167, 168]
3. Since the purpose of Articles 15(4) and 16(4) is to ensure equality
of opportunity of the socially backward classes, the criterion for
sub-classification within a class (be it the Other Backward Classes
or the Scheduled Castes or Tribes) must be an indicator of social
backwardness - The yardstick for classification must differentiate
the class based on inter-se social backwardness - The inter-se
backwardness could be identified based on the same or different
identity. [Para 174]
4. Since the State can use any yardstick to determine inter-se
backwardness, it is not necessary that the criteria for subclassification and the criteria used to distinguish the class from
the other classes must be the same - How does the State identify
inter-se social backwardness within the Scheduled Castes? The
inter-se backwardness can, inter alia, be identified based on
inadequacy of effective representation - However, it must be
proved that inadequacy of effective representation of a caste is
because of its social backwardness - The State must prove that
the group/caste carved out from the larger group of Scheduled
Castes is more disadvantaged and inadequately represented.
[Paras 175, 177]
5. While the State may embark on an exercise of sub-classification,
it must do so on the basis of quantifiable and demonstrable data
bearing on levels of backwardness and representation in the
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The State of Punjab & Ors. v. Davinder Singh & Ors.
services of the State - It cannot merely act on its whims or as
a matter of political expediency - The decision of the State is
amenable to judicial review - When its action is challenged under
Article 226 or before this Court under Article 32, the State must
provide justification and the rationale for its determination - No
State action can be manifestly arbitrary - It must be based on
intelligible differentia which underlie the sub-classification - The
basis of the sub-classification must bear a reasonable nexus to
the object sought to be achieved. [Para 190]
6. Though sub-categorization based on each caste is permissible,
there can never be a situation where seats are allocated for every
caste separately - Though each caste is a separate unit, the
social backwardness suffered by each of them is not substantially
distinguishable to warrant the State to reserve seats for each
caste - If the social backwardness of two or more classes is
comparable, they must be grouped together for the purposes of
reservation. [Para 195]
7. The scope of sub-classification of the Scheduled Castes is
summarized as follows: (i) The objective of any form of affirmative
action including sub-classification is to provide substantive equality
of opportunity for the backward classes - The State can subclassify, inter alia, based on inadequate representation of certain
castes - However, the State must establish that the inadequacy of
representation of a caste/group is because of its backwardness; (ii)
The State must collect data on the inadequacy of representation
in the "services of the State" because it is used as an indicator
of backwardness; and (iii) Article 335 of the Constitution is not
a limitation on the exercise of power under Articles 16(1) and
16(4) - Rather, it is a restatement of the necessity of considering
the claims of the Scheduled Castes and the Scheduled Tribes in
public services - Efficiency of administration must be viewed in
a manner which promotes inclusion and equality as required by
Article 16(1). [Para 205(f)]
Held (per B.R. Gavai, J.) (Concurring): 1. For sub-classification
amongst the Scheduled Castes, the State will have to justify
that the group for which more beneficial treatment is provided is
inadequately represented as compared to the other castes in the
said List. [Para 296 (iii)]
2. While doing so, the State will have to justify the same on the
basis of empirical data that a sub-class in whose favour such more
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beneficial treatment is provided is not adequately represented.
[Para 296 (iv)]
3. However, while providing for sub-classification, the State would
not be entitled to reserve 100% seats available for Scheduled
Castes in favour of a sub-class to the exclusion of other castes
in the List. [Para 296 (v)]
4. Such a sub-classification would be permissible only if there is a
reservation for a sub-class as well as the larger class. [Para 296 (vi)]
Held (per Vikram Nath, J.) (Concurring): Any exercise involving
sub-classification by the State must be supported by empirical
data. [Para 1]
Held (per Satish Chandra Sharma, J.) (Concurring): I am
fully in agreement with the opinion(s) authored by Hon'ble
Dr. Justice D.Y. Chandrachud, Chief Justice of India and Hon'ble
Mr. Justice B.R. Gavai, respectively to the extent that any exercise
involving sub-classification by the State, must be supported by
empirical data that ought to underscore the more 'disadvantaged'
status of the sub-group to which such preferential treatment is
sought to be provided vis-à-vis the Constitutional Class as a
whole. [Para 1]
Reservation - Applicability of creamy layer principle to the
Scheduled Castes - Discussed.
Held (per B.R. Gavai, J.): 1. Taking into consideration that
the Constitution itself recognizes the Scheduled Castes and
Scheduled Tribes to be the most backward section of the society,
the parameters for exclusion from affirmative action of the person
belonging to this category may not be the same that is applicable
to the other classes - If a person from such a category, by bagging
the benefit of reservation achieved a position of a peon or maybe a
sweeper, he would continue to belong to a socially, economically and
educationally backward class - At the same time, the people from
this category, who after having availed the benefits of reservation
have reached the high echelons in life cannot be considered to
be socially, economically and educationally backward so as to
continue availing the benefit of affirmative action - They have
already reached a stage where on their own accord they should
walk out of the special provisions and give way to the deserving
and needy. [Para 294]
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2. The State must evolve a policy for identifying the creamy layer
even from the Scheduled Castes and Scheduled Tribes so as
exclude them from the benefit of affirmative action - Only this and
this alone can achieve the real equality as enshrined under the
Constitution. [Para 295]
3. The finding of M. Nagaraj, Jarnail Singh and Davinder Singh
to the effect that creamy layer principle is also applicable to
Scheduled Castes and Scheduled Tribes lays down the correct
position of law. [Para 296 (vii)]
4. The criteria for exclusion of the creamy layer from the Scheduled
Castes and Scheduled Tribes for the purpose of affirmative action
could be different from the criteria as applicable to the Other
Backward Classes. [Para 296 (viii)]
Held (per Vikram Nath, J.) (Concurring): I am in agreement with
the opinion of Brother Justice Gavai that 'creamy layer' principle is
also applicable to Scheduled Castes and Scheduled Tribes, and
that the criteria for exclusion of creamy layer for the purpose of
affirmative action could be different from the criteria as applicable
to the Other Backward Classes. [Para 2]
Held (per Pankaj Mithal, J.) (Concurring): 1. Justice Gavai has
rightly concluded that the State must evolve a policy of identifying
the creamy layer even from the scheduled castes and scheduled
tribes so as to exclude them from the benefit of reservation. [Para 83]
2. In the Constitutional regime, there is no caste system and the
country has moved into a casteless society except for the deeming
provision under the Constitution for the limited purposes of affording
reservation to the depressed class of persons, downtrodden or
belonging to SC/ST/OBC - Therefore, any facility or privilege for
the promotion of the above categories of persons has to be on a
totally different criteria other than the caste may be on economic
or financial factors, status of living, vocation and the facilities
available to each one of them based upon their place of living
(urban or rural). [Para 84(ii)]
3. The reservation, if any, has to be limited only for the first
generation or one generation and if any generation in the family
has taken advantage of the reservation and have achieved higher
status, the benefit of reservation would not be logically available
to the second generation. [Para 84(iii)]
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[2024] 8 S.C.R.
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4. Periodical exercise has to be undertaken to exclude the class
of person who after taking advantage of reservation has come to
march, shoulder to shoulder with the general category. [Para 84(iv)]
Held (per Satish Chandra Sharma, J.) (Concurring): On the
question of applicability of the 'creamy layer principle' to Scheduled
Castes and Scheduled Tribes, I find myself in agreement with
the view expressed by Justice Gavai i.e., for the full realisation of
substantive equality inter se the Scheduled Castes and Scheduled
Tribes, the identification of the 'creamy layer' qua Scheduled Castes
and Scheduled Tribes ought to become a constitutional imperative
for the State. [Para 2]
Held (per Bela M. Trivedi, J.) (Dissenting): In so far as
Article 15(4) and 15(5) are concerned, the use of the word "any"
before the words "socially and educationally backward classes"
and the use of the word "the" before "Scheduled Castes/Scheduled
Tribes" clearly indicate that the said provisions pertain to the "Other
Backward Classes" which are socially and educationally backward,
and that the said provisions also pertain to the "Scheduled Castes"
and "Scheduled Tribes", however the "Scheduled Castes" do not
require any further identification once they are notified under
Article 341 - As rightly held in Ashok Kumar Thakur, the "creamy
layer" principle is one of the parameters to identify backward
classes - The "Scheduled Castes" having already been specified
in the Presidential List under Article 341, the said creamy layer
principle cannot be applied to the "Scheduled Castes" for their
identification as backward class. [Para 71]
Case Law Cited
In the judgment of Dr Dhananjaya Y Chandrachud, CJI
EV Chinnaiah v. State of Andhra Pradesh [2004] Supp. 5
SCR 972 : (2005) 1 SCC 394 - overruled.
State of Kerala v. NM Thomas [1976] 1 SCR 906 : (1976) 2 SCC
310; Indra Sawhney v. Union of India [1992] Supp. 2 SCR 454 :
(1992) Supp. 3 SCC 217 - explained.
Triloki Nath v. State of J&K [1969] 1 SCR 103; State of UP v. Pradip
Tandon [1975] 2 SCR 761 : 1975 1 SCC 267; Akhil Bhartiya Soshit
Karamchari Sangh (Rly) v. Union of India [1981] 2 SCR 185 : (1981)
[2024] 8 S.C.R.
1333
The State of Punjab & Ors. v. Davinder Singh & Ors.
1 SCC 246; State of Punjab v. Davinder Singh [2020] 10 SCR 857:
(2020) 8 SCC 1; Jarnail Singh v. Lachhmi Narain Gupta [2018] 10
SCR 663 : (2018) 10 SCC 396; Bhaiyalal v. Harikishan Singh [1965]
2 SCR 877; State of Maharashtra v. Milind [2000] Supp. 5 SCR
65 : (2001) 1 SCC 4; Bir Singh v. Delhi Jal Board [2018] 10 SCR
513 : (2018) 10 SCC 312; B. Basavalingappa v. D. Munichinnapa
[1965] 1 SCR 316; Srish Kumar Chodhury v. State of Tripura
[1990] 1 SCR 576 : 1990 Supp SCC 220; State of West Bengal v.
Anwar Ali Sarkar [1952] 1 SCR 284 : (1952) AIR 75; Chiranjit Lal
Chowdhury v. Union of India [1950] 1 SCR 869 : 1950 SCC 833;
General Manager, Southern Railway v. Rangachari [1962] 2 SCR
586 : AIR 1962 SC 36; CA Rajendra v. Union of India AIR 1968 SC
507; State of Madras v. Champakam Dorairajan [1951] 1 SCR 525;
B Venkataramana v. The State of Madras AIR 1951 SC 229; Balaji
v. State of Mysore [1963] Supp. 1 SCR 439 : AIR 1963 SC 649;
Union of India v. Virpal Singh Chauhan [1995] Supp. 4 SCR 158 :
(1995) 6 SCC 684; Ajit Singh (II) v. State of Punjab (1999) INSC
407; Ajit Singh (I) v. State of Punjab [1996] 3 SCR 125 : (1996) 2
SCC 715; S Vinod Kumar v. Union of India [1996] Supp. 7 SCR
142 : (1996) 6 SCC 580; T Devadasan v. Union of India [1964] 4
SCR 680; M Nagaraj v. Union of India [2006] Supp. 7 SCR 336 :
(2006) 8 SCC 212; Neil Aurelio Nunes v. Union of India [2022] 1
SCR 970 : (2022) 4 SCC 1; BK Pavitra (II) v. State of Karnataka
[2019] 7 SCR 1086 : (2019) 16 SCC 129; Janki Prasad Parimoo
v. State of J&K [1973] 3 SCR 236 : (1973) 1 SCC 420; Shri Ram
Krishna Dalmia v. Shri SR Tandolkar [1959] 1 SCR 279 : 1958
SCC OnLine SC 6; Special Courts Bill, 1978, In re [1979] 2 SCR
476 : (1979) 1 SCC 380; Moorthy Match Works v. CCE [1974] 3
SCR 121 : (1974) 4 SCC 428; Deepak Sibal v. Punjab University
[1989] 1 SCR 689 : (1989) 2 SCC 145; Budhan Choudhry v. State
of Bihar [1955] 1 SCR 1045; All India Station Masters & Assistant
Station Master's Association v. General Manager, Central Railways
[1960] 2 SCR 311 : AIR 1960 SC 384; Mohd. Shujat Ali v. Union
of India [1975] 1 SCR 449 : 1975 3 SCC 76; State of Jammu and
Kashmir v. Triloki Nath Khosa [1974] 1 SCR 771 : 1974 1 SCC 19;
Roshan Lal Tandon v. Union of India [1968] 1 SCR 185; Katyani
Sayal v. Union of India [1980] 3 SCR 139 : (1980) 3 SCC 245;
Col AS Iyer v. V Balasubramanyam [1980] 1 SCR 1036 : 1980
1 SCC 634; Navtej Singh Johar v. Union of India [2018] 7 SCR
379 : (2019) 3 SCC 345; Consolidated Coffee Ltd v. Coffee Board,
1334
[2024] 8 S.C.R.
Digital Supreme Court Reports
Bangalore [1980] 3 SCR 625 : 1980 3 SCC 358; Bhuwalka Steel
Industries Limited v. Union of India [2017] 2 SCR 993 : (2017) 5
SCC 598; St. Aubyn v. Attorney General 1952 AC 15; Industrial
Supplies Private Limited v. Union of India [1981] 1 SCR 375 :
(1980) 4 SCC 341; K. Prabhakaran v. P. Jayarajan [2005] 1 SCR
296 : (2005) 1 SCC 754; Bengal Immunity Company Ltd v. State
of Bihar [1955] 2 SCR 603 : (1955) SCC OnLine SC 2; Delhi
Cloth & General Mills Co. Ltd v. State of Rajasthan [1980] 3 SCR
1109 : 1976 3 SCC 443; Punit Rai v. Dinesh Chaudhary [2003]
Supp. 2 SCR 743 : 2003 8 SCC 204; Marri Chandra Shekar Rao
v. Dean, Seth GS Medical College [1990] 2 SCR 843: (1990) 3
SCC 130; Palghat Jilla Thandan Samudhaya Samrakshna Samithi
v. State of Kerala [1993] Supp. 3 SCR 872 : (1994) 1 SCC 359;
Janki Prasad Parimoo v. State of Jammu and Kashmir [1973] 3
SCR 236 : (1973) 1 SCC 420; RK Sabharwal v. State of Punjab
[1995] 2 SCR 35 : (1995) 2 SCC 745; Triloki Nath v. State of
Jammu and Kashmir (I) [1967] 2 SCR 265; Chitralekha v. State
of Mysore. AIR 1964 SC 1823; P Rajendran v. State of Madras
[1968] 2 SCR 786; Barium Chemicals v. Company Law Board
(1992) Supp. 3 SCC 217 - referred to.
East End Dwelling Co. Ltd. v. Finsbury Borough Council LR 1952
AC 109 - referred to.
In the judgment of B.R. Gavai, J.
E.V. Chinnaiah v. State of Andhra Pradesh and Ors. [2004] Supp.
5 SCR 972 : (2005) 1 SCC 394; - held, not good law.
State of Kerala and another v. N.M. Thomas and others [1976] 1
SCR 906 : (1976) 2 SCC 310; Indra Sawhney and others v. Union
of India and others [1992] Supp. 2 SCR 454 : (1992) Supp 3
SCC 217 - explained.
M. Nagaraj and others v. Union of India and others [2006] Supp.
7 SCR 336 : (2006) 8 SCC 212; The State of Punjab & Ors. v.
Davinder Singh & Ors. [2020] 10 SCR 857 : (2020) 8 SCC 1;
Jarnail Singh and others v. Lachhmi Narain Gupta and others
[2018] 10 SCR 663 : (2018) 10 SCC 396 - affirmed.
The State of Punjab & Ors. v. Davinder Singh & Ors. (2020) 8
SCC 65; State of Madras v. Smt. Champakam Dorairajan [1951]
1 SCR 525; M.R. Balaji and others v. State of Mysore [1963]
[2024] 8 S.C.R.
1335
The State of Punjab & Ors. v. Davinder Singh & Ors.
Supp. 1 SCR 439 : 1962 SCC OnLine 147; State of Gujarat v.
Shri Ambica Mills Ltd., Ahmedabad [1974] 3 SCR 760 : (1974)
4 SCC 656; His Holiness Kesavananda Bharati Sripadagalavaru
v. State of Kerala [1973] Supp. 1 SCR 1 : (1973) 4 SCC 225; T.
Devadasan v. Union of India [1964] 4 SCR 680 : AIR 1964 SC 55;
Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented
by its Assistant General Secretary on behalf of the Association v.
Union of India and others [1981] 2 SCR 185 : (1981) 1 SCC 246;
K.C. Vasanth Kumar and another v. State of Karnataka [1985]
Supp. 1 SCR 352 : 1985 Supp SCC 714; Marri Chandra Shekhar
Rao v. Dean, Seth G.S. Medical College and others [1990] 2 SCR
843 : (1990) 3 SCC 130 - referred to.
In the judgment of Pankaj Mithal, J.
E.V. Chinnaiah v. State of Andhra Pradesh and Ors. [2004] Supp.
5 SCR 972 : (2005) 1 SCC 394; Indra Sawhney and Ors. v. Union
of India and Ors. [1992] Supp. 2 SCR 454 : (1992) Supp. 3 SCC
217; State of Madras v. Champakam Dorairajan [1951] 1 SCR
525 : AIR (1951) SC 226; B. Venkataramana v. State of Madras
and Ors. AIR (1951) SC 229; S. Vinod Kumar and Anr. v. Union
of India and Ors. [1996] Supp. 7 SCR 142 : (1996) 6 SCC 580;
Union of India v. Virpal Singh Chauhan [1995] Supp. 4 SCR 158 :
(1995) 6 SCC 684; Ajit Singh Januja v. State of Punjab [1996] 3
SCR 125 : (1996) 2 SCC 715; Ajit Singh (II) v. State of Punjab
(1999) INSC 546; Ashoka Kumar Thakur v. State of Bihar [1995]
Supp. 3 SCR 269 : (1995) 5 SCC 403; Indra Sawhney (II) v. Union
of India [1999] Supp. 5 SCR 229 : (2000) 1 SCC 168; M. Nagaraj
v. Union of India [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212;
TMA Pai Foundation v. State of Karnataka [2002] Supp. 3 SCR
587 : (2002) 8 SCC 481; Islamic Academia Education v. State
of Karnataka [2003] Supp. 2 SCR 474 : (2003) 6 SCC 697; P.A.
Inamdar v. State of Maharashtra [2005] Supp. 2 SCR 603 : (2005)
6 SCC 537; Ashok Pramati Educational & Cultural Trust v. Union
of India [2014] 11 SCR 712 : (2014) 8 SCC 1; Ram Singh v. Union
of India [2015] 5 SCR 670 : (2015) 4 SCC 697; Janhit Abhiyan
v. Union of India (EWS Reservation) [2022] 14 SCR 1 : (2023)
5 SCC 1; M.R Balaji v. State of Mysore [1963] Supp. 1 SCR
439 : AIR 1963 SC 649; K C Vasantha Kumar & Anr. v. State of
Karnataka (1985) SCC Suppl. 714; State of Kerala v. N M Thomas
[1976] 1 SCR 906 : (1976) 2 SCC 310; Akhil Bharatiya Soshit
1336
[2024] 8 S.C.R.
Digital Supreme Court Reports
Karamchari Sangh v. Union of India & Ors. [1981] 2 SCR 185 :
(1981) 1 SCC 246; Jaishri Laxmanrao Patil v. State of Maharashtra
(2021) 8 SCC 1 - referred to.
In the judgment of Bela M. Trivedi, J.
Pradip Chandra Parija and Others v. Pramod Chandra Patnaik
and Others [2001] Supp. 5 SCR 460 : 2002 (1) SCC 1; Maganlal
ChhaganLal (P) Ltd. v. Municipal Corporation of Greater Bombay &
Others [1975] 1 SCR 1 : (1974) 2 SCC 402; Lt. Col. Khajoor Singh
v. Union of India & Another [1961] 2 SCR 828 : AIR 1961 SC 532;
Keshav Mills Co. Ltd. v. Commissioner of Income Tax, Bombay
North, Ahmedabad [1965] 2 SCR 908 : AIR 1965 SC 1636; Dr.
Shah Faesal and Others v. Union of India and Another [2020] 3
SCR 1115 : (2020) 4 SCC 1; GVK Industries Limited and Another
v. Income Tax Officer and Another [2011] 3 SCR 366 : (2011) 4
SCC 36; Dr. JaiShri Laxman Rao Patil v. Chief Minister and Others
[2021] 15 SCR 715 : (2021) 8 SCC 1; B. Basavalingappa v. D.
Munichinnappa & others [1965] 1 SCR 316 : AIR (1965) SC 1269;
Bhaiya Lal v. Harikishan Singh [1965] 2 SCR 877 : AIR (1965) SC
1557; State of Maharashtra vs. Milind and Others [2000] Supp.
5 SCR 65 : (2001) 1 SCC 4; Bir Singh v. Delhi Jal Board and
Others [2018] 10 SCR 513 : (2018) 10 SCC 312; State of Kerala
& Anr. v. N.M. Thomas & Ors. [1976] 1 SCR 906 : (1976) 2 SCC
310; Ashok Kumar Thakur v. Union of India and Others [2007] 7
SCR 63 : (2008) 6 SCC 1; and Supreme Court Bar Association
v. Union of India and Another [1998] 2 SCR 795 : (1998) 4 SCC
409 - followed.
State of Haryana vs. Ranbir alias Rana [2006] 3 SCR 864 : (2006)
5 SCC 167; ADM Jabalpur vs. Shivakant Shukla (1976) 8 SCC
521; and Bharat Coking Coal Ltd. v. State of Bihar and Others
[1990] 3 SCR 744 : (1990) 4 SCC 557- relied on.
E.V. Chinnaiah v. State of Andhra Pradesh and Others [2004]
Supp. 5 SCR 972 : (2005) 1 SCC 394 - affirmed.
Indra Sawhney v. Union of India and Others [1992] Supp. 2 SCR
454 : (1992) Suppl. 3 SCC 217; and Jarnail Singh v. Lachhmi Narain
Gupta [2018] 10 SCR 663 : (2018) 10 SCC 396 - distinguished.
K.C. Gajapati Narayan Deo v. State of Orissa [1954] 1 SCR 1 :
(1953) 2 SCC 178; M. Nagaraj and Others v. Union of India and
Others [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212; State of
Punjab and Others v. Davinder Singh and Others (2020) 8 SCC 65;
[2024] 8 S.C.R.
1337
The State of Punjab & Ors. v. Davinder Singh & Ors.
State of Punjab and Others v. Davinder Singh and Others [2020]
10 SCR 857 : (2020) 8 SCC 1 - referred to.
Northern Securities Company v. The United States (1903) 193
U.S. 197 (1903) - referred to.
Books and Periodicals Cited
In the judgment of Dr Dhananjaya Y Chandrachud, CJI
3rd meeting of the National Commission for Scheduled Castes
held on 13.12.2010 under the Chairmanship of Dr PL Punia;
Ashwini Deshpande, Double Jeopardy? Stigma of Identity and
Affirmative Action, The Review of Black Political Economy 2019,
Vol. 46(I) 38-64; Marc Galanter, Competing Equalities: Law and
the Backward Classes in India, [Oxford University Press (1984)]
130; Report of the Indian Franchise Committee (1932) Vol I,
112; Hutton Census Report (1931) 471; Minute of dissent by
Mr SB Rambe, Mr CY Chintamani, Mr RR Bakhale, Report of the
Franchise Committee, 231; Dr Ambedkar, Note on the Depressed
Classes, Report of the Franchise Committee, 211; AM Shah, The
'Dalit" category and its Differentiation; AM Shah, Untouchability,
the Untouchables and Social Change in Gujarat in Dimensions of
Social Life, Essays in Honor of David G Mandelbaum (edited by
Paul Hockings); Robert F Kennedy, Center for Justice and Human
Rights, Understanding Untouchability: A comprehensive Study of
Practices and Conditions in 1589 Villages, 22-33; Ravinchandran
Bathran, The many omissions of a concept: Discrimination amongst
Scheduled Castes, Economic & Political Weekly, (Vol L1 No. 47,
November 19, 2016) 1342-1346; Uma Ramaswamy, Protection
and Inequality among Backward Groups, Economic & Political
Weekly (Vol. 21 No.